Month: June 2013

The Supreme Court Makes the Same Ruling It Always Does on Affirmative Action

No Comments

It allows for continuing affirmative action, but they have ruled against the specific remedy.

That is the nickel tour of
Fisher v. UT Austin:

Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs. In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.” Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.” The Court in Fisher took pains to make clear exactly what this means: courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body. Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

They have been making this same decision since Bakke.

I expect this to continue, until affirmative action is effectively a dead issue.

They Pretend to Pay Us, and We Pretend to Work

No Comments

It’s an old joke from the Soviet Union, and in a very real way, it explains much of what brought down the USSR.

Well, the good folks at The New York Times have found a study showing that, after decades of MBA driven management by intimidation, a majority of American workers actually loathe their employers:

I thought of this black mark on my résumé while reading an exhaustive and depressing new study of the American workplace done by the Gallup organization. Among the 100 million people in this country who hold full-time jobs, about 70 percent of them either hate going to work or have mentally checked out to the point of costing their companies money — “roaming the halls spreading discontent,” as Gallup reported. Only 30 percent of workers are “engaged and inspired” at work.

 At first glance, this sad survey is further proof of two truisms. One, the timeless line from Thoreau that “the mass of men lead lives of quiet desperation.” The other, less known, came from Homer Simpson by way of fatherly advice, after being asked about a labor dispute by his daughter Lisa. “If you don’t like your job,” he said, “you don’t strike, you just go in there every day and do it really half-assed. That’s the American way.”

Or, as Gin and Tacos notes, “When a job devalues employee, literally and figuratively, their response is often to work just hard enough to avoid getting fired.”

In the G&T case, he’s talking about (underpaid and never getting a raise) teachers at a Catholic school basically checking out for the month of May (multiple showings of Toy Story), but it applies throughout our economy.

In a very real way, we are eating our seed corn, and I fear that it will not become apparent until it is too late.

What happens when we run out or rubes who think that good work and honesty will get you ahead?

H/T Balloon Juice.

Charlie Completely Freaks Out (In a Good Way)

No Comments

I was in the bedroom, and Charlie started screaming like an Banshee.

It went on and on and on.

Finally, he made it to the bedroom, and told me that he had successfully done his first blindfolded Rubik’s cube solve.

While blind cube solving would not be my choice of where to apply efforts, it’s certainly better than something like, “evil overlord bent on world domination.”

Snowden Has Flown to Russia, Is Expected to Ask for Asylum in Ecuador

No Comments

I am not surprised.  Hong Kong is not a safe haven in the long term, and if he returns to the United States, he will be tortured through extended solitary confinement in an attempt to break him, as was done with Wen Ho Lee.

So he is in Moscow negotiating asylum with Ecuador:

Fugitive former US intelligence contractor Edward Snowden is due to fly out of Russia in the next few hours in a bid to seek asylum in Ecuador.

Reports suggest he will be on an early afternoon flight out of Moscow, heading first to the Cuban capital Havana.

Washington says it is urging countries in the “Western Hemisphere” not to let Mr Snowden enter their territory.

The US has charged him with espionage over leaked secret documents revealing US internet and phone surveillance.

In a series of rapidly moving developments on Sunday, Mr Snowden flew to Moscow from Hong Kong where he had been holed up since fleeing the US.

Once at Moscow’s Sheremetyevo Airport it is thought he was met by Ecuador’s ambassador to Moscow whose car was seen arriving by reporters.

On Sunday night it was unclear exactly where Mr Snowden was, but he was believed to be still at the airport.

BBC Moscow correspondent Daniel Sandford says it is being reported that he will fly first to Cuba and then to Venezuela before heading to Ecuador. The first plane scheduled to fly to Havana was due to leave Sheremetyevo at 14:05 Moscow time (10:05 GMT).

He will be trying to avoid any country that might arrest him on behalf of the US, our correspondent adds.

At this point, I expect that Obama is looking into ways of having Snowden whacked, and Glenn Greenwald might be on his latest kill list as well.

Like Rendering for Torture, Only With Data

No Comments

In another scoop, the Guardian has revealed that GCHQ, the British Equivalent of the NSA, engaged in the same sort of massive data drift net as the NSA:

Britain’s spy agency GCHQ has secretly gained access to the network of cables which carry the world’s phone calls and internet traffic and has started to process vast streams of sensitive personal information which it is sharing with its American partner, the National Security Agency (NSA).

 The sheer scale of the agency’s ambition is reflected in the titles of its two principal components: Mastering the Internet and Global Telecoms Exploitation, aimed at scooping up as much online and telephone traffic as possible. This is all being carried out without any form of public acknowledgement or debate.

 One key innovation has been GCHQ’s ability to tap into and store huge volumes of data drawn from fibre-optic cables for up to 30 days so that it can be sifted and analysed. That operation, codenamed Tempora, has been running for some 18 months.

 ………

 By May last year 300 analysts from GCHQ, and 250 from the NSA, had been assigned to sift through the flood of data.

 The Americans were given guidelines for its use, but were told in legal briefings by GCHQ lawyers: “We have a light oversight regime compared with the US“.

 When it came to judging the necessity and proportionality of what they were allowed to look for, would-be American users were told it was “your call”.

 The Guardian understands that a total of 850,000 NSA employees and US private contractors with top secret clearance had access to GCHQ databases.

(Emphasis mine)

What we are seeing here is the moral equivalent of the rendition for torture that the CIA engaged in with despotic governments.

In this case, the NSA is not allowed to spy on Americans, so they have the British do it for them and then they review the data under the British “Light oversight regime.”

Note that this in addition to the exceptions and shadings on the NSA’s own surveillance discussed by the Electronic Frontier Foundation.

Taken together, it’s a blue print for a lawless surveillance state.

(updated title)

Once Again, Obama Invokes the 96 Year Old Espionage Act Yet Again

No Comments

Yes, this time Worst Constitutional Law Professor Ever™ is using the act, originally drafted to prohibit expressing anti-war sentiments, to pursue a leaker, in this case, go after Edward Snowden:

Federal prosecutors have filed a criminal complaint against Edward Snowden, the former National Security Agency contractor who leaked a trove of documents about top-secret surveillance programs, and the United States has asked Hong Kong to detain him on a provisional arrest warrant, according to U.S. officials.

 Snowden was charged with theft, “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person,” according to the complaint. The last two charges were brought under the 1917 Espionage Act.

Rolling Glenn Greenwald:

Prior to Barack Obama’s inauguration, there were a grand total of three prosecutions of leakers under the Espionage Act (including the prosecution of Dan Ellsberg by the Nixon DOJ). That’s because the statute is so broad that even the US government has largely refrained from using it. But during the Obama presidency, there are now seven such prosecutions: more than double the number under all prior US presidents combined. How can anyone justify that?

For a politician who tried to convince Americans to elect him based on repeated pledges of unprecedented transparency and specific vows to protect “noble” and “patriotic” whistleblowers, is this unparalleled assault on those who enable investigative journalism remotely defensible? Recall that the New Yorker’s Jane Mayer said recently that this oppressive climate created by the Obama presidency has brought investigative journalism to a “standstill”, while James Goodale, the General Counsel for the New York Times during its battles with the Nixon administration, wrote last month in that paper that “President Obama will surely pass President Richard Nixon as the worst president ever on issues of national security and press freedom.” Read what Mayer and Goodale wrote and ask yourself: is the Obama administration’s threat to the news-gathering process not a serious crisis at this point?

………

They haven’t learned anything from these disclosures that they didn’t already well know. The people who have learned things they didn’t already know are American citizens who have no connection to terrorism or foreign intelligence, as well as hundreds of millions of citizens around the world about whom the same is true. What they have learned is that the vast bulk of this surveillance apparatus is directed not at the Chinese or Russian governments or the Terrorists, but at them.

And that is precisely why the US government is so furious and will bring its full weight to bear against these disclosures. What has been “harmed” is not the national security of the US but the ability of its political leaders to work against their own citizens and citizens around the world in the dark, with zero transparency or real accountability. If anything is a crime, it’s that secret, unaccountable and deceitful behavior: not the shining of light on it.

(Emphasis Original)

He is correct.  The only potential “injury to the United States” (from the text of this law) is to subject the actions of the NSA, and the rest of the US state security apparatus to public discussions.

The terrorists already knew this, as it is clear from the approved leaks from the Obama administration made this clear to anyone with 2 working brain cells.

I wish that we had a less paranoid president with a greater devotion to openness and transparency.

Of course, Richard Nixon qualifies as less paranoid President with a greater devotion to openness and transparency, which just goes to show how far we have fallen as a society.

Worst ……… Speaker ……… Ever

No Comments

It appears that John Boehner is too drunk to do the most basic job of Speaker of the House, which is count the f%$#ing votes:

The surprise defeat of the farm bill in the House on Thursday underscored the ideological divide between the more conservative, antispending Republican lawmakers and their leadership, who failed to garner sufficient votes from their caucus as well as from Democrats.

The vote against the bill, 234 to 195, comes a year after House leaders pulled the measure off the calendar because conservative lawmakers demanded deeper cuts in the food stamp program and Democrats objected. This year’s measure called for more significant cuts than the Senate bill, but it still did not go far enough to get a majority in the House to support an overhaul of the nation’s food and farm programs. Sixty-two Republicans, or more than a quarter of the caucus, voted with Democrats to defeat the bill.

The failure was a stinging defeat for Speaker John A. Boehner of Ohio, who continues to have trouble marshaling the Republican support he needs to pass major legislation. Without the solid backing of his party, Mr. Boehner has to rely on some Democratic support, which deserted him Thursday.

Mr. Boehner was unable to secure the votes of a number of recently elected and strongly conservative lawmakers who were averse to cutting deals on legislation like the farm bill. Traditionally, the farm bill has passed easily with support from urban lawmakers concerned with nutrition spending and rural members focused on farm programs. But conservatives said they were more driven by a desire to shrink the size of government through spending cuts, not expand it though crop insurance subsides to rich farmers.

The conventional wisdom was that 40 Dem votes would allow it to pass (there were only 24), but they would needed have to get 44 Dem votes for it to pass.

Boehner caved to the Teabaggers add gutted food stamps, and then hew did not get the Teabagger votes, and THEN he failed to count the votes.

Even if you like his politics, it is clear that John Boehner is completely incompetent.

I agree with Nancy Pelosi’s characterization of this cluster f%$# as, “Major Amateur Hour.”

Obama Is Lying About the Prevented Terror Attacks, and Other NSA Scandal Stuff

No Comments

A review of the claims shows that either ordinary law enforcement actions uncovered the planned attacks, or that there never was a planned attack, there never was an attack:

This suspect, in turn, was in contact with an individual in the United States named Khalid Ouazzani. Thus warned, the FBI investigated Mr. Ouazzani through traditional law enforcement methods, and discovered a burgeoning plot to bomb the NYSE.

 “Ouazzani had been providing information and support to this plot,” FBI Deputy Director Sean Joyce told lawmakers.
However, Mr. Ouazzani pleaded guilty to providing material support – in his case, money – to Al Qaeda, not to terror planning. His May 2010 plea agreement makes no mention of anything related to the New York Stock Exchange, or any bomb plot, notes David Kravets in Wired magazine.

 Plus, Ouazzani’s defense attorney said Tuesday the stock market allegation was news to him.

 “Khalid Ouazzani was not involved in any plot to bomb the New York Stock Exchange,” attorney Robin Fowler told Wired.

 As to the New York subway plot, it was discovered not by analysis of vast amounts of Internet data of foreign users, but rather by old-fashioned police work, according to The Guardian, the British newspaper that first published a secret NSA document showing the agency collected phone metadata from Verizon Business Services.
A British intelligence investigation into a suspected terrorist cell in England’s northwest first turned up a crucial e-mail address of a Pakistani extremist, write The Guardian’s Ed Pilkington and Nicholas Watt. They passed this address to the US.

 Surveillance of this one address led the US to Najibullah Zazi, an Afghan-American living in Colorado who had asked the Pakistani extremist for explosives recipes. FBI agents followed Mr. Zazi as he traveled to New York. Search warrants turned up bomb components, and in 2010 Zazi confessed to a plot to bomb the city’s subway system with backpacks.

The NSA’s sweeping data interception capability “played a relatively minor role” in breaking this case, write Mr. Pilkington and Mr. Watt.

And the Guardian now hsa published the secret standards used by the NSA, and it appears we have another lie, because the standards do allow for emails to be read and phone calls to be listened to:(see here and here for the docs)

The Guardian is publishing in full two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009. They detail the procedures the NSA is required to follow to target “non-US persons” under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.

The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.

………
The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection.

However, alongside those provisions, the Fisa court-approved policies allow the NSA to:

  • Keep data that could potentially contain details of US persons for up to five years;
  • Retain and make use of “inadvertently acquired” domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
  • Preserve “foreign intelligence information” contained within attorney-client communications;
  • Access the content of communications gathered from “U.S. based machine[s]” or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.

………

The documents also show that discretion as to who is actually targeted under the NSA’s foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors – though a percentage of targeting decisions are reviewed by internal audit teams on a regular basis.

………

Those procedures state that the “NSA determines whether a person is a non-United States person reasonably believed to be outside the United States in light of the totality of the circumstances based on the information available with respect to that person, including information concerning the communications facility or facilities used by that person”.

It includes information that the NSA analyst uses to make this determination – including IP addresses, statements made by the potential target, and other information in the NSA databases, which can include public information and data collected by other agencies.

Where the NSA has no specific information on a person’s location, analysts are free to presume they are overseas, the document continues.

“In the absence of specific information regarding whether a target is a United States person,” it states “a person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person.”

If it later appears that a target is in fact located in the US, analysts are permitted to look at the content of messages, or listen to phone calls, to establish if this is indeed the case.

Referring to steps taken to prevent intentional collection of telephone content of those inside the US, the document states: “NSA analysts may analyze content for indications that a foreign target has entered or intends to enter the United States. Such content analysis will be conducted according to analytic and intelligence requirements and priorities.“

(emphasis mine)

Translated from the bureaucratese, this is unlimited ability to record phone calls and emails, until it is proven that they are not in the United States, and even then, the data is retained.

All that the analyst has to do is to claim that you are “not sure” if the target is a “US Person”, and it’s no harm no foul for intercepting the contents of their communications.

As Glenn Greenwald notes, this is yet more evidence that FISA court oversight is a complete joke.

H/t to Washington’s blog for the links on the NSA false claims.

Turkish Authorities Use Fake Protestors to Justify Crackdown

No Comments

I’m not particularly surprised by this.

Between his bankster friendly policies and his social and religious conservatism, it was inevitable that he would resort to infiltration and false flag operations:

And so it proved, with police encircling the square at 6am on Tuesday, firing rubber bullets and teargas, and ripping down banners calling for Erdoğan’s resignation. By happy coincidence, Turkey’s state media, which for days had blithely ignored the country’s huge anti-government demonstrations, were on hand to record the event.

 Turkish TV viewers witnessed this: a small group of four or five “demonstrators” throwing molotov cocktails at police. At one point they advanced on police lines in a comic Roman-style phalanx while holding the flag of a fringe Marxist party. The “protesters” were in fact middle-aged undercover police officers, staging a not very plausible “attack” on their own for the benefit of the cameras.

 But the violence meted out against the genuine protesters camped out under the plane trees of nearby Gezi Park was real enough. Dozens were left choking or injured as teargas billowed across central Istanbul. Meanwhile, some 50 lawyers acting for detained activists were themselves dragged away by police and roughed up at Istanbul’s Çağlayan court.

(Emphasis mine)

The Austin Texas police did much the same thing with an Occupy Houston protest.

Of course, it’s not going to be a problem with the US, because Recep Tayyip Erdoğan is Wall Street’s man, so he’s going to be supported by our foreign policy establishment.

H/t Jonathan Turley.

6 Democrats to Punish

No Comments

They voted for the Republican bill outlawing abortion after 20 weeks:

Six Democrats and six Republicans broke with their respective parties late Tuesday on House GOP legislation to ban nearly all abortions after 20 weeks of pregnancy.

The Pain-Capable Unborn Child Protection Act, written by Rep. Trent Franks (R-AZ), creates narrow exemptions to protect the life of the mother, and in cases of rape and incest as long as the crimes have been reported. It passed 228-196 but won’t become law because Democrats control the Senate and White House.

The six Democrats who voted for the act were Reps. Nick Rahall (WV), Collin Peterson (MN), Jim Matheson (UT), Mike McIntyre (NC), Dan Lipinski (IL) and Henry Cuellar (TX).

I would particularly note that Lipinski’s vote is particularly egregious, because he is in a solidly Democratic district.

6 Republicans also voted against the bill, but some of them did because they thought that the exceptions for rape and incest meant that the bill did not go far enough, and in any case, I’m not going to endorse a ‘Phant.

MicroFlaccid Folds Like a Bunch of Overcooked Broccoli

No Comments

Still not a gamer, but I love this animated GIF

They have reversed themselves on their restrictive XBox One content policies:

YET ANOTHER UPDATE (5:24 Eastern): Microsoft has confirmed to Kotaku that the “family sharing” and digital cloud library access features that were planned to be in the Xbox One are indeed gone thanks to today’s policy reversal. Xbox one users will also apparently have to download a “Day One” patch to enable the offline mode.

 FURTHER UPDATE:

 “You can play, share, lend, and resell your games exactly as you do today on Xbox 360.” That is now the official word from Microsoft.

 Microsoft says it “imagined a new set of benefits such as easier roaming, family sharing, and new ways to try and buy games,” but that it also realized that “the ability to lend, share, and resell these games at your discretion is of incredible importance to you.”

 No Internet connection will be required to play offline Xbox One games; the Internet will only be required for a one-time initial system setup. There will be no limitations on sharing or selling game discs. Downloaded games will be playable offline, and there will be no regional restrictions on those games.

 On the downside, there will be no digital “family” sharing as was previously announced, and disc-based games will require the disc to be in the tray to be played.

Not surprising that they are killing “Family Sharing”. It was only in there as an excuse to kill the resale market.

I am a bit surprised that Microsoft came to its senses before it experiences months of disappointing sales.

The Fed Speaks

No Comments

They won’t be stopping the stimulus, but the short version is that they will continue to keep their foot on accelerator, but maybe not quite so much:

The Federal Reserve, increasingly confident in the durability of economic growth, expects to start pulling back later this year from its efforts to stimulate the economy, the Fed chairman, Ben S. Bernanke, said on Wednesday.

 Mr. Bernanke, offering new details, said the central bank intends to scale down gradually its monthly purchases of Treasury securities and mortgage-backed bonds beginning later this year and ending when the unemployment rate hits 7 percent, which the Fed expects to happen by the middle of next year.

 The central bank would then take several more years to unwind the rest of its extraordinary stimulus campaign, slowly raising short-term interest rates from essentially zero to more normal levels after the jobless rate has fallen to 6.5 percent or lower.

 He emphasized, however, that the timing of the retreat depends on the health of the economy; if growth falters, the central bank would slow, or even reverse, the process. The expectations of Fed officials for the next several years, published Wednesday, are more optimistic than the consensus of private forecasters.

 Pulling back “would basically say that we’ve had a relatively decent economic outcome in terms of sustained improvement in growth and unemployment,” Mr. Bernanke said. “If things are worse, we will do more. If things are better, we will do less.”

I would prefer that they target a higher inflation rate until unemployment falls before 6%, but who listens to me.

My Opinion of Ed Snowden Just Rose

No Comments

In his online chat for the Guardian, he said that, “Being called a traitor by Dick Cheney is the highest honor you can give an American.”

Asked during a live chat on The Guardian’s website to respond to U.S. officials who have called him a traitor, Edward Snowden, the self-proclaimed source of recently leaked top secret National Security Agency documents, said he considers it an honor to be called a traitor by the likes of former Vice President Dick Cheney.

“[I]t’s important to bear in mind I’m being called a traitor by men like former Vice President Dick Cheney,” Snowden wrote. “This is a man who gave us the warrantless wiretapping scheme as a kind of atrocity warm-up on the way to deceitfully engineering a conflict that has killed over 4,400 and maimed nearly 32,000 Americans, as well as leaving over 100,000 Iraqis dead. Being called a traitor by Dick Cheney is the highest honor you can give an American, and the more panicked talk we hear from people like him, Feinstein, and King, the better off we all are. If they had taught a class on how to be the kind of citizen Dick Cheney worries about, I would have finished high school.”

I’ve already called him a hero.

He also appears to be a bit of a wit in what must be an anxiety laden situation.

“Grace under pressure,” is how Hemingway described courage.

The NSA is Channeling Joe McCarthy

No Comments

There are 205 … 57 … 52 … 81 … Communists …ψ

So, the NSA is claiming that their anti-privacy drift net, “helped foil more than 50 attacks.”

A few days ago, they were claiming around 20.

And, of course, “Helped foil” isn’t defined, because … Secret.

Recently disclosed National Security Agency surveillance programs have helped disrupt more than 50 “potential terrorist events” around the world over the last 12 years, according to U.S. intelligence officials, who described the spying operations as tightly regulated and extremely useful.

 The officials, testifying Tuesday before the House Intelligence Committee, identified two new cases — an alleged plot to blow up the New York Stock Exchange, and a U.S. resident who helped finance a terrorist group in Somalia — that they said proved the value of collecting domestic telephone calling records and monitoring foreign Internet traffic.

 Most of the plots were foiled by surveillance of foreigners overseas, the kind of spying the NSA has done since it was created in 1952 to monitor communications and other so-called signals intelligence.

 The surveillance programs “are critical to … our nation and our allies’ security,” said Gen. Keith Alexander, who heads the NSA and the Pentagon’s U.S. Cyber Command. “They assist the intelligence community efforts to connect the dots.”

It’s possible that General Alexander was telling the truth, but considering the fact that Director of National Intelligence James Clapper deliberately perjured himself before Congress without any consequence, I would be inclined to believe that best, this is an example of “truthiness”, and they chose a number and cherry picked cases to hit that number.

It’s possible that the General is telling the truth, and not engaging in spin.

It’s also possible that I greeted my Sharon* in in bed this evening, wearing nothing but a towel with a chrysanthemum between my teeth.†

The US state security apparatus has used secrecy and deception to justify their program secrecy and deception. Absent a massive and complete declassification of data, Alexander, or Clapper, or Brennan, or for that matter, Barack Obama, are simply not credible sources.

Secrecy and hoovering up everything are an end in and of itself for the NSA and its ilk, and it is up to the political leaders to reign them in.

*Love of my life, light of the cosmos, she who must be obeyed, my wife.
†Actually, not possible. She is violently allergic to the insecticide pyrethrin, which is a naturally occurring substance extracted from chrysanthemums. I have no comment on whether I did so with a rose between my teeth.‡
‡Let me state for the record that a moment of stunned silence, followed by a nervous chuckle, might be the world’s most effective form of birth control.
ψJoe McCarthy made claims that there were numerous Communists employed by the State Department. His numbers kept changing.

On the Other Hand, This Decision is a Good One

No Comments

The Supreme Court upheld the right of the FTC to sue to prevent brand name drug manufacturers to bribe generic drug manufactures to keep them out of the market:

This case is an antitrust challenge to an increasingly common practice in the pharmaceutical industry. Brand-name companies faced with generic competition pay the would-be competitor an amount of money to stay out of the market. The payment comes in the form of settling a dispute over the validity or infringement of the brand-name company’s patent. Because generic entry reduces drug prices, these “pay for delay” or “reverse payment” agreements are alleged to reduce competition and increase drug costs. The Federal Trade Commission sued drug companies over one such deal. The court of appeals rejected that claim, explaining that the brand name’s patent includes the right to exclude competitors.

Today, by a vote of five to three, the Supreme Court reversed and held that the claim can go forward. Justice Breyer wrote the Court’s opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Chief Justice Roberts dissented, joined by Justices Scalia and Thomas. Justice Alito was recused from the case.

While they did not rule that the payments were presumptively illegal, it does make such payments far more unlikely, since the right of review has been affirmed.

A Horriffic 5-4 Supreme Court Decision

No Comments

They just Eviscerated the 5th Amendment. They say that you cannot be forced to testify, but if you don’t, a prosecutor can use your silence against you:

Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial. If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.

The Court had taken on the case of Salinas v. Texas to decide whether it violates the Fifth Amendment for prosecutors to use pre-arrest silence as evidence of guilt. But the Court did not reach that issue, since it said that one must say something that invokes the Amendment’s protection, or else it does not apply. Prosecutors’ use of the silence is then permitted, it ruled.

“A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Justices Samuel A. Alito, Jr., wrote. The Court rejected the argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

Basically, if you are rich enough to have a lawyer, you can invoke that, but if you are too poor for one, then invoking the 5th Amendment in any way other than a specific and precise legalistic manner, it will be used against you.

Father’s Day Movie Review: Iron Man 3

No Comments

As I’ve noted before, I would pay to listen to Robert Downey, Jr. read the phone book, so we went to see Iron Man 3, in 3-D.

Robert Downey Jr. … Tony Stark
Gwyneth Paltrow … Pepper Potts
Don Cheadle … Colonel James Rhodes
Guy Pearce … Aldrich Killian
Rebecca Hall … Maya Hansen
Jon Favreau … Happy Hogan
Ben Kingsley … The Mandarin
James Badge Dale … Savin
Stephanie Szostak … Brandt
Paul Bettany … Jarvis (voice)
William Sadler … President Ellis
Dale Dickey … Mrs. Davis
Ty Simpkins … Harley Keener
Miguel Ferrer … Vice President Rodriguez
Xueqi Wang … Doctor Wu

This movie will not be a surprise. It’s a part of the franchise, and largely true to the conventions of that franchise.

The downside of the movie is the plot, which is overly complex, and it has problems with coherence and consistency.

This was the same problem with Iron Man 2, which I also enjoyed.

Downey is a joy to watch, but the best performance of the movie is by Sir Ben Kingsley as The Mandarin, which I cannot even begin to describe without spoiling the plot.

The dialogue is punchy, and frequently amusing, much like the two previous sequels, though the best single line comes from neither Downey nor Kingsley, but from an unnamed minion of The Mandarin, who behaves in a way in which minions would in reality.

What I can say is that the film was set around Christmas, which is rather odd for a Summer blockbuster, and a child has a rather prominent role, Ty Simpkins as Harley Keener, and he does not suck.

I also found that Gwynneth Paltrow was a lot less annoying that in the last movie.  She had less hand wringing, and did things, as opposed to being an object to be acted upon.

As to the 3-D, except for explosions and action sequences (admittedly half the movie) it was relatively understated.

I would give it a 7 out of 10.